President Trump made a move to use his broad executive authority in a new and unprecedented way this week. He threatened to slap Mexico with punitive tariffs unless it slows the passage of migrants from Central America to the US.
The tariffs will begin at 5% and increase to 25% in the months ahead unless Trump sees the results he wants, the White House said. But White House officials couldn’t explain exactly what the president wants to see. If they go into effect, they will impose harsh economic penalties on Americans who buy goods from Mexico. But How can Trump make these moves?
One key is to recognize that the emergency powers he is using evolved from the need for the President to act with decisive authority during war, specifically World War I. The Great Depression prompted the expansion of emergency powers to include economic emergencies, according to an analysis by the Congressional Research Service.
These same powers were used throughout the Cold War until the 1970s, when, according to CRS, Congress basically realized the US had been in a state of emergency for 40 years and put new restrictions on the President. These included requirements to track the cost of any emergency and justify it each year.
The law through which Trump can impose sanctions like the tariffs, passed in the wake of Watergate and Vietnam, is the 1977 International Emergency Economic Powers Act. This authority has actually been used quite frequently; there have been 54 national emergencies, 29 of which are ongoing.
Some of these emergencies targeting countries have been going on for decades, like sanctions on Iran. Others, like the one imposed by Bill Clinton targeting narcotics traffickers, have certainly affected people in Mexico, but just as certainly not affected the whole country.
The law has never, before now, been used to impose tariffs, according to CRS. And Mexico is a neighbor and ally, from which we bought $345 billion in stuff last year because we are joined together in the North American Free Trade Agreement.
White House officials have privately conceded it’s not clear the President has the legal authority to impose tariffs on this scale, CNN reported Thursday. They are concerned that the move could draw legal challenges that could leave it tied up in the courts without ever taking effect.